[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 14893 Non

- Argument Calendar

________________________ D.C. Docket No. 8:09

- cr - 00429

- VMC

- EAJ

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus FREDERICK WARDELL MITCHELL, a.k.a. Wardell, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (June 24, 2014) Before TJOFLAT , MARCUS and JORDAN , Circuit Judges.
P ER CURIAM: Frederick Mitchell, proceeding pro se , appeals the district court’s denial of his Fed.R.Crim.P. 33 motion for a new trial based on newly discovered evidence

Case: 13-14893 Date Filed: 06/24/2014 Page: 1 of 52 concerning his 2010 convictions for robbery and other related offenses. In support of his Rule 33 motion, Mitchell submitted an affidavit by Roberto Almaguer asserting that the government had coerced him into falsely testifying against Mitchell at trial. The record shows that Almaguer originally testified at trial that he and Mitchell, al ong with a third individual, committed an armed robbery of a Waffle House restaurant. On appeal, Mitchell argues that : (1) the district court erred in finding that Almaguer’s affidavit, recanting his former testimony, did not constitute newly discovered e vidence warranting a new trial ; and (2) the court erred in denying his motion for a new trial without first conducting an evidentiary hearing. After careful review, we affirm. We review the district court’s denial of a Rule 33 motion for a new trial for

a buse of discretion. United States v. Sweat , 555 F.3d 1364, 1367 (11th Cir. 2009). We also review a d ecision to rule on a Rule 33 motion without an evidentiary hearing for abuse of discretion. United States v. Schlei , 122 F.3d 944, 990 (11th Cir. 1997). Additionally, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris , 437 F.3d 1107, 1110 (11th Cir. 2006) (quotations omitted). Rule 33 allows a defe ndant to file a motion for a new trial within 3 years after the verdict if the motion is based on “newly discovered evidence,” or 14 days after the verdict if based on “other grounds.” Fed.R.Crim.P. 33(b). The court may

Case: 13-14893 Date Filed: 06/24/2014 Page: 2 of 53 grant the motion “if the interest of justice so requires.” Fed.R.Crim.P. 33(a). We have held that, to succeed on a Rule 33 motion based on newly discovered evidence, the defendant must establish that: (1) the evidence was discovered after trial, (2) the failure of the defendant to discov er the evidence was not due to a lack of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different resul t. United States v. Jernigan , 341 F.3d 1273, 1287 (11th Cir. 2003) (quotations omitted). The defendant must satisfy all of these elements to warrant relief. United States v. Williams , 816 F.2d 1527, 1530 (11th Cir. 1987). We have noted that motions for a new trial based on newly discovered evidence “are highly disfavored . . . and should be granted only with great caution.” United States v. Campa , 459 F.3d 1121, 1151 (11th Cir. 2006 ) (en banc) (quotations omitted). “In ruling on a motion for new trial based upon newly discovered evidence, it is within the province of the trial court to consider the credibility of those individuals who give statements in support of the motion.” Unit ed States v. Reed , 887 F.2d 1398, 1404 n.12 (11th Cir. 1989). Further, we have held that, for newly discovered evidence to justify a new trial, “the evidence must be material and not merely cumulative or impeaching, and must be such that it will probably produce an acquittal.” United States v. Diaz , 190 F.3d 1247, 1255 (11th Cir. 1999).

Case: 13-14893 Date Filed: 06/24/2014 Page: 3 of 54 The government’s presentation of perjured testimony or failure to correct false evidence violates due process. Giglio v. United States , 405 U.S. 150, 153

- 55 (1972). In order to establish a Giglio violation, the defendant must show that “(1) the contested statements were actually false, (2) the statements were material, and (3) the prosecution knew that they were false.” United States v. Bailey , 123 F.3d 1381, 1395 (11t h Cir. 1997) (quotations omitted). In order to show that the contested statements were material, the defendant must demonstrate that “the false testimony could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” United States v. Dickerson , 248 F.3d 1036, 1041 (11th Cir. 2001) (quotations omitted). First, we reject Mitchell’s claim that t he district court abuse d its discretion by denying the motion for a new trial based on newly discovered eviden ce. As the record s hows, Almaguer’s affidavit was conclusory

-- it did not identify which portions of his trial testimony were untrue or provide a corrected account of the robbery. Thus, it was within the district court’s province to find that the affida vit was not credible when viewed against Almaguer’s detailed testimony at trial. As for whether Almaguer’s affidavit constituted newly discovered evidence, the affidavit was not dated, and Mitchell did not show that he obtained the affidavit after the tri al was completed. Moreover, even assuming, arguendo, that Almagu er’s affidavit constituted new evidence, the record shows that the

Case: 13-14893 Date Filed: 06/24/2014 Page: 4 of 55 government produced substantial evidence of Mitchell’s guilt at trial apart from Almaguer’s testimony. As a result , there w as little in the record for the district
court to find that Almaguer’s affidavit would have probably produced an acquittal

. S ee Diaz , 190 F.3d at 1255 . In short , the district court did not abuse its discretion by denying the motion for new trial on this c laim

. Nor, moreover, did the district court abuse its discretion in finding t hat Mitchell was not entitled to a new trial on the basis of any Giglio violation. Among other things, Mitchell failed to demonstrate that the government knowingly introduced an y false testimony. See Bailey , 123 F.3d at 1395. Finally, the district court did not abuse its discretion by failing to conduct an evidentiary hearing before denying Mitchell’s motion for a new trial. We have

s aid that a defendant is not entitled to an evidentiary hearing on a Rule 33 motion if “the acumen gained by a trial judge over the course of the proceedings [made her] well qualified to rule on the [motion] without a hearing.” Schlei , 122 F.3d at 994 (quotat ions omitted). Here, District Judge Covington, who ruled upon Mitchell’s motion, also presided over his trial. Because J udge Covington was already familiar with the evidence and the demeanor of the witnesses, it was not necessary for the court to conduct an evidentiary hearing before ruling on Mitchell’s motion. See id. AFFIRMED. Case: 13-14893 Date Filed: 06/24/2014 Page: 5 of 5